Negotiated Sanctions Receive Boost In DC

Two significant recommendations of the District of Columbia Board on Professional Responsibility propose acceptance of a negotiated sanction of a three-year suspension with fitness for otherwise disbarment-worthy reckless misappropriation.

These matters were remanded from the Court of Appeals for the board’s input.

The recommendation in the Mensah matter is unanimous; there were dissents from the Agwumezie recommendation.

How different is three years versus five and the shame of the D word?

From the Mensah report

We begin with Disciplinary Counsel’s argument that, in essence, the difference between three years with fitness and disbarment is outweighed by the advantages to the disciplinary system and the profession as a whole in resolving this case quickly. Broadly speaking, we agree, but that does not fully resolve the issue.

The practical effect between a three-year suspension with fitness and disbarment is that the former permits the lawyer to petition to rejoin the Bar two years earlier than the latter. See D.C. Bar R. XI, § 16(a) (a disbarred attorney “may not apply for reinstatement until the expiration of at least five years from the effective date of the disbarment”). But two years is not the entire difference between the two sanctions. There is an additional public statement that comes from disbarment that is not captured by the mere amount of time the lawyer is unable to practice law.

…we do think the difference between the sanction under Addams and the sanction agreed on here is qualitatively greater than Disciplinary Counsel described. Though we do agree that the practical effect is the same.

Nonetheless

We recommend that the Court accept the three-year suspension with fitness for reckless misappropriation because it protects the public and the courts, safeguards the integrity of the profession, deters Respondent and other attorneys from engaging in similar misconduct, and is not unduly lenient.

Should this acceptance be a signal going forward?

Our concurring colleagues disagree with us only in that they would find that a sanction of three years with fitness could be justified – and is so in this case – but would not be justified in all negotiated discipline cases involving reckless misappropriation. Much of the difference between the views of this majority and the concurring members turns on whether a three-year suspension is appropriate on the facts of the other case issued today, In re Agwumezie, Board Docket No. 20-ND005 (BPR July 19, 2021). For the reasons set out there, our conclusion is that for all cases of reckless misappropriation in which Disciplinary Counsel agrees to reach a negotiated disposition, a sanction of three years with fitness is a justified sanction under both the law involving negotiated discipline and for sound policy reasons. Though this is set out in more detail in that Report.

Chair Matthew Kaiser authored the majority reports in both matters.

A concurrence of Member Hora is joined by two colleagues in Mensah

we believe that the seriousness of the misconduct and mitigating and aggravating factors must be analyzed in each case.

The same three members dissented in the Agwumezie matters

the stipulated facts involve reckless misappropriations as did Mensah, but the serious nature of the overall misconduct and the limited mitigating circumstances well distinguish it – sufficiently so that we find that the agreed-upon sanction of a three-year suspension with fitness is unduly lenient.

These members favor a sometimes yes, sometimes no approach.

An approach that fails to consider a hearing committee’s important role in differentiating the seriousness of the misconduct (e.g., number of reckless misappropriations over a protracted period and additional rule violations, the existence of significant aggravating factors and limited mitigating factors) potentially gives Disciplinary Counsel an unfettered role because a negotiated three year’s suspension with fitness would always be approved as justified and not unduly lenient. Even if the majority’s policy arguments had merit, the majority’s proposed default sanction of a three-year suspension with fitness for reckless misappropriation cases brought through negotiated discipline is inconsistent with current negotiated case law and Rule XI, Section 12.1. See also Board Rule 17.5(a)(iii).

The Agwumezie dissents do tee up the question whether the benefit of a prompt public-protecting resolution invariably outweigh the serious nature of the stipulated misconduct.

But in my opinion this point in Agwumezie majority should carry the day

Our acceptance of the proposed disposition reflects sound policy as it presents the combined benefits of more quickly removing Respondent from practice while conserving disciplinary resources. The disciplinary system as a whole is better when the disciplinary system’s scarce resources (Disciplinary Counsel, Hearing Committees, the Board and the Court) are allocated prudently. If a lawyer who recklessly mishandles client money can be removed from practice relatively quickly, with an admission of misconduct and fewer resources from those involved in the prosecution and adjudication of disciplinary cases, the public is protected sooner, and the discipline system is able to focus on other cases – further protecting the public. We disagree with the dissent that permitting Respondent to petition for reinstatement two years sooner is too high a price to pay for the other benefits present here.

I agree that some cases may be sufficiently egregious to merit full-blown prosecution. I also trust Disciplinary Counsel to know the difference.

we can trust Disciplinary Counsel with this decision because it’s not meaningfully different than other decisions we trust Disciplinary Counsel with. Indeed, when it comes to whether a lawyer who needs to show fitness has done so, we already do trust Disciplinary Counsel with that initial determination. The Court permits Disciplinary Counsel, if it agrees that the lawyer has shown that fitness is appropriate, to bypass a hearing and simply tell the Court why it thinks the lawyer should be readmitted.

The question whether such a negotiated disposition would be available in an intentional misappropriation case remains unanswered.

And, to make it more complicated, sometimes it’s hard to determine whether misappropriation is intentional, reckless or negligent.

These are hugely consequential recommendations that have the potential to loosen the shackles off of negotiated dispositions.

The board gets the result exactly right.

Note that if the attorneys here stipulated to the misconduct but took their case through the normal processes, they would be able to continue to practice for at least three and likely five more years. (Mike Frisch)